E Coli Lawyer & Attorney : Marler Clark Law Firm : E. coli Blog

The Associated Press broke the story yesterday that a Wisconsin family's E. coli lawsuit - one stemming from the 2006 spinach E. coli outbreak - had been resolved without going to trial.  Dinesh Ramde, AP business writer, wrote:

The agreement was reached in October but not filed in federal court until last week. It still needs approval from a federal judge, which Marler said he is confident will happen.

The national outbreak in September 2006 was traced to tainted spinach produced by Natural Selection Foods LLC. Three people died, including 77-year-old Marion Graff of Manitowoc.

Of the 204 people sickened by the tainted greens, Marler said about 100 have brought a lawsuit. His firm is handling 83 cases and has resolved 51 within the past few months.

On September 14, 2006, the Food and Drug Administration (FDA) announced that a nationwide E. coli outbreak had been associated with the consumption of bagged baby spinach. For fear of E. coli contamination, all bagged spinach was recalled nationwide, and on September 19, 2006, FDA announced that all spinach implicated in the outbreak had been traced back to Natural Selection Foods, a company located in California’s Salinas Valley.

FDA and the Centers for Disease Control and Prevention (CDC) confirmed 204 E. coli illnesses associated with the spinach E. coli outbreak, including thirty-one cases of hemolytic uremic syndrome, 104 hospitalizations, and three deaths. Victims of the E. coli outbreak were identified in 26 states: Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Michigan, Minnesota, Nebraska, Nevada, New Mexico, New York, Ohio, Oregon, Pennsylvania, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Wisconsin was the state hardest-hit in the outbreak, with 49 confirmed cases of E. coli. Canada reported one confirmed case.

A joint trace back by FDA and the State of California revealed that four spinach fields were the possible source of the E. coli contamination. The outbreak strain of E. coli was isolated from cattle fields nearby the implicated spinach fields, as well as from a wild boar that was killed in one of the fields.

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Federal prosecutors have decided against charging companies involved in the September 2006 E. coli outbreak traced to contaminated spinach.

Following the outbreak, which led to the deaths of three people and sickened about 200 others, FBI agents raided two produce processing plants and several farms for evidence of environmental and food-safety violations. The investigation did not find that growers or processors had deliberately skirted the law or were negligent in preventing tainted foods from entering the marketplace, said U.S. Attorney Scott Schools.

Authorities had searched plants in October run by Growers Express LLC in Salinas and Natural Selection Foods LLC in San Juan Bautista, as well as farms in Santa Clara, Monterey and San Benito counties.

The outbreak last August and September caused 205 illnesses in 26 states and killed two elderly women and a toddler. The U.S. Centers for Disease Control and Prevention estimated that about 4,000 people were sickened by the spinach, taking into account that relatively few cases typically are reported.

The companies involved in the spinach E. coli outbreak still face civil litigation.
 

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Marler Clark client Elizabeth Armstrong testified in front of the US House Energy & Commerce Subcommittee on Oversight and Investigations in regards to food safety.

Her 2-year-old daughter, Ashley, one of more than 200 people affected by the outbreak of E. coli 0157:H7 in spinach last year, is still dealing with the effects of kidney failure. Today she is off dialysis and home from the hospital. But she is on daily medication and will eventually need a kidney transplant, said her mother, who lives with her family in a suburb of Indianapolis.

Armstrong suggested efforts to overhaul the US Food and Drug Administration. Her report included comments from important players in the food industry, including a quote from former FDA commissioner Dr. David Kessler, who stated, "Our food safety system is broken."
 

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Yesterday, the California Senate Health Committee passed three bills introduced by Senator Dean Florez.  Before they reached the Senate Health Committee, the bills could be summarized as follows:

• Senate Bill 200 gives the Department of Health Services the much-needed authority to recall, quarantine, or destroy produce which may pose a threat to the public. The measure also creates an inspection program to proactively address the threat of outbreaks. DHS inspectors would have the authority to conduct periodic on-farm inspections, including testing of water, soil and produce.
  
• Senate Bill 201 mandates Good Agricultural Practices for leafy green growers, covering everything from water and fertilizer use, to worker hygiene, to the creation of buffer zones between fields and potential contamination sources. Growers would be required to maintain extensive documentation of these practices. These documents would be reviewed by DHS to ensure compliance.
  
• Senate Bill 202 calls for the creation of a traceback system that can quickly trace contaminated produce through the various stages of the distribution process, from farm to processor, to distributor, to retailer. In the most recent E. coli outbreaks, lettuce and spinach producers nationwide took a major economic hit, because it could not immediately be determined where the contaminated produce came from and every farm was suspect. The ability to quickly find the specific source in an outbreak, combined with DHS’ ability to quarantine or destroy suspect produce, will prevent a similar industry-wide hit in future E. coli outbreaks.
  

According to an article in today's Salinas Californian, the bills passed out of the Senate Health Committee into the Senate Appropriations Committee, but were amended to instruct public health officials to set safety standards for growers of leafy green vegetables to follow.  The Californian's Jake Henshaw wrote:

Florez originally proposed that the state health department license growers, set field standards and enforce them with inspections.

But SB 201 was amended in the Senate Agriculture Committee, chaired by [Senator Abel] Maldonado, to make state health department regulation a backup to the industry if it failed to adopt its own mandatory safety standards.

SB 200 does require the departments of Public Health and of Food and Agriculture to administer jointly an inspection program of farmers' records and field operations to be sure they are meeting approved standards.

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As California spinach producers began harvesting their crops this week, legislators, consumers, and health officials discussed the possibility of another E. coli outbreak while spinach farmers and processors tried to assure the public that they were doing all they could to prevent another outbreak.

According to the Salinas Californian, the industry-designed, government-supervised plan will require all handlers who voluntarily sign up to accept spinach, lettuce and other leafy greens only from growers who follow new growing standards.

Participating handlers will begin paying 2 cents per carton to pay for inspections and other activities under the new plan. Government inspectors, paid by the assessments to ensure that farmers follow the designated growing practices, will start making rounds Monday — primarily to test the checklist they’ll use in future inspections.

"We may have traced the outbreak to a certain area, and we may have identified the genetic marker," said Patti Roberts of the Department of Health Services, referring to four ranches in Monterey and San Benito counties. "But there are still a lot of unknowns out there."
 

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Dateline NBC reported on fresh food contamination, with emphasis on fresh spinach and lettuce grown in California, and whether irradiation is the answer to ensuring our fresh produce is safe.

"We can say all day long that we have the safest food system in the world," says Seattle attorney Bill Marler, who specializes in cases involving victims of E. coli-contaminated produce. "Well, we don't. And we have systems that are broken. We have things that need to be fixed."

Marler represents Michelle Matthews, who is suing Dole Foods and Natural Selections/Earthbound Foods to cover her past and future medical bills and her pain and suffering. He says the industry has known about and ignored the problem for years.

"It's easy in these situations to go, 'I'm not sure exactly what caused the problem, so there's nothing I can do. But I'm making a lot of money selling spinach and lettuce in a bag, so I'm going to keep doing that.' They didn't take the time to figure out what the problem was," says Marler.
 

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The California Department of Health Services and the FDA have released their final report on the spinach E. coli outbreak.

Authorities for the first time said they had isolated the deadly E. coli strain on Paicines Ranch in San Benito County from a field the ranch leased to Mission Organics, a spinach grower.

They found E. coli "indistinguishable from the outbreak strain" in river water, cattle feces, and wild pig feces on the ranch within a mile a from the spinach fields, the California Department of Health Services and U.S. Food and Drug Administration said in a joint report.

Investigators also said they could not make a "definitive determination" as to how the E. coli contaminated the spinach.

The Paicines Ranch, which breeds Angus cattle and quarter horses, said in a statement on its Web site that it leases land to crop growers and was not under investigation in the outbreak.
 

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The addition of $25 million of funding for spinach farmers who lost revenue during last year's spinach recall is affecting those victims of the E.coli outbreak.

The losses to the farmers came when they were unable to sell their crops last fall after Americans got sick and died from e-coli bacteria in a batch of tainted spinach.

Some of that spinach found its way to the Matthew's dinner table. Michelle got sick, but her daughter, Arabella, almost died. Arabella was just two-years-old when she came down with E. coli. She spent nine days at Primary Children's Hospital, had an operation and was on kidney dialysis from hemolytic uremic syndrome.

The Matthews have about $60,000 in medical bills now, mostly covered by insurance. She says the family has been assured the spinach grower's insurance company would pay the bills, but no money has arrived. Then Mrs. Matthews read that the spinach farmers stand to gain $25 million from the Iraq war spending bill.

"I understand this is the way our legislature works, but I think it's just sickening," Michelle Matthews of Eagle Mountain told ABC 4 News.

In an article for USA Today, Marler Clark client Darryl Howard whose mother, Betty, died after becoming ill with an E. coli infection, said, "They killed my mother, and now they want me to pay for it." Marler Clark is also representing Michelle Matthews.
 

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Fresh spinach that sparked a nationwide E. coli outbreak last fall was grown on a roughly 50-acre plot in San Benito County, health officials told state lawmakers.

Officials said at a legislative hearing Tuesday that investigators identified the grower who was farming that plot, which was in the second year of a three-year transition to organic production.

However, they declined to release further details until they complete a full report on the outbreak. Dr. Kevin Reilly of the California Department of Health Services did not give an exact date for releasing the report with the U.S. Food and Drug Administration, but said "hopefully within the next few weeks."

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CBS News correspondent Wyatt Andrews interviewed Marler Clark client Lisa Brott, who became ill with an E. coli infection after eating E. coli-contaminated spinach in September, former USDA and FDA food safety official Michael Taylor, and Senator Dick Durbin for a story that aired tonight on the CBS Evening News. Notable comments included the following:

• "There's no one in charge in the federal food safety system."  - Michael Taylor
• "The basic allocation has nothing to do with who's getting sick, and it's out of proportion to where the actual risks in the food supply." - Michael Taylor
• "When you consider 75 million Americans with food-borne illnesses each year, I do believe a better, more modern, streamlined agency would reduce those numbers. And it means that more people would survive." - Senator Dick Durbin
• "It's outrageous so many people are poisoned by food.  A lot more has to be done, whatever it takes, to protect people's health." - Lisa Brott

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In the wake of E. coli outbreaks traced to spinach and lettuce last year, and in many years prior to 2006, the United Fresh Produce Association is asking for federal regulations to set standards for produce safety and the Government Accountability Office listed food safety as a high-risk area. In an article from the Philadelphia Inquirer, which focused on what small, local, farmers are doing to ensure produce safety, concerns about regional marketing agreements and state or local regulations were highlighted:

However, such state-by-state and commodity-by-commodity standards are not satisfactory, said Tom Stenzel, president of the United Fresh Produce Association in Washington. Stenzel's trade group is calling for national regulations enforced by government agencies.

"The consumer is not going to have full trust in a self-regulatory system. That's a hard pill for us as an industry to swallow," said Stenzel, who is scheduled to speak tomorrow at the New Jersey State Agricultural Convention in Atlantic City. It starts today and runs through Wednesday.

Existing federal regulations on food safety need to be improved, according to the federal Government Accountability Office, which added the federal food-safety system to its list of high-risk areas of government activity less than two weeks ago. The main issue is fragmentation, with 15 agencies administering at least 30 laws related to food safety.

Discussions among produce-industry groups and regulators are coming at a time when E. coli and other human pathogens are less prevalent - the colder months.  It is in anticipation of the summer and fall growing season that concerns are being addressed now.  From the Arizona Republic:

Lettuce and spinach production begins in the Salinas Valley in the spring. Production moves south as the weather cools, with farms in Yuma County and California's Imperial Valley producing the crops during the winter.

"In the history of Yuma agriculture, we have never had any sort of an outbreak with our leafy-greens," said Kurt Nolte, area agriculture agent for the Yuma County Cooperative Extension, part of the University of Arizona. "The nature of food outbreaks occurs during the warm periods of the year."

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Investigators for the FDA and CDC have indicated that the E. coli-contaminated lettuce that sickened customers at Northeast Taco Bell restaurants in November and December of 2006 came from California's Central Valley. The Taco Bell outbreak was reported just before an outbreak at Taco John's locations in the Midwest, which was also traced to lettuce grown in the Central Valley.

In an article for the Salinas Californian, Brian Tumulty reported that FDA was continuing its investigation and that a final investigation report into the Taco Bell E. coli outbreak would not be published for at least another month, while a report on last fall's E. coli outbreak traced to baby spinach will be issued before then.

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Marion Nestle, professor of nutrition, food studies, and public health at New York University, she asserts that the latest E. coli outbreak traced to fresh produce from the Salinas Valley was preventable and predictable and that having a single federal agency in charge of food safety is part of the solution to preventing outbreaks in the future. She tells NPR:

“For anyone who tracks the arcane politics of food safety in the United States, this outbreak was entirely predictable. Since 1998, the Food and Drug Administration has repeatedly warned producers of fresh fruit and vegetables about the dangers of E. coli 0157:H7 and the need for measures to keep potential sources of these bacteria well away from their crops.

In 2004, the FDA issued a plan for preventive steps that it fully expected vegetable producers to follow. But last year the agency complained that its long efforts to engage the lettuce industry ``have not yet resulted in a comprehensive, collaborative plan to address the issue of E. coli 0157:H7.'' The FDA then warned growers to get busy and fix the problem.

This August -- too late to prevent the current outbreak -- the agency extended this warning to spinach producers. The futility of the FDA's increasingly urgent pleas reflects the huge gaps in the nation's century-old and highly dysfunctional food safety system.”
 

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On Monday, Marler Clark will file another lawsuit on behalf of a victim of the recent E. coli O157:H7 outbreak traced to contaminated spinach. The lawsuit will be filed against Natural Selection Foods, LLC and National Selection Foods Manufacturing, LLC in federal court in Utah on behalf of Murray, Utah resident Sheila Leafty and her young son, Brayden. Brayden is one of at least 14 Utah residents who have become ill with E. coli O157:H7 infections after eating contaminated spinach produced by Natural Selection Foods. 

Marler Clark also added both Natural Selection companies to two lawsuits that the firm filed last week in federal court in Oregon and Wisconsin against Dole Food Company. Health officials in those states have reported that at least 19 residents (5 in Oregon and 14 in Wisconsin) were confirmed to be part of the outbreak. On Sunday, the Food and Drug Administration reported that 109 individuals in 19 states, sixteen of whom have developed hemolytic uremic syndrome (see www.about-hus.com), have been confirmed as being part of the outbreak. One Wisconsin resident died after suffering complications of E. coli infection.

As the grower and producer, Natural Selections Foods should have been consumers’ first line of defense against E. coli entering the food supply. Instead, this company allowed contaminated produce to enter the marketplace and caused one of the largest fresh produce-related outbreaks in recent history.

This is not the first time bagged spinach has been traced to an E. coli outbreak. Bagged lettuce and spinach were traced to E. coli O157:H7 outbreaks in 2002[1], 2003[2], and 2005.[3] Consumers put their trust in the 31 brands that Natural Selections Foods supplied spinach for. They shouldn’t have to pay for their trust with their health.

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Right on the heels of the nationwide E. coli outbreak stemming from tainted lettuce, the US FDA has announced a nationwide warning to consumers against consuming spinach for the same reasons.

Douglas Powell and Ben Chapman of the Food Safety Network say that despite the fact that fruits and vegetables are good for us, they are one of, if not the most, significant source of foodborne illness today in North America, with an estimated 76 million illness and 5,000 deaths in the U.S. each and every year from foodborne illness.

The U.S. lettuce/leafy greens industry took the first step in doing this, releasing a comprehensive set of food safety guidelines, from the farm through to retail, in April, 2006.

Powell and Chapman state that any grower can clean up for a once-a-year audit by inspectors. They are urging growers to maintain the standards for the rest of the year as well.
 

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